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From Products Liability Law Daily, December 13, 2013

Ford’s appeal of $7.1 million verdict in Explorer rollover case rejected

By Pamela C. Maloney, J.D.

An Arkansas jury verdict of $7,152,125 against Ford Motor Company for fatal injuries to a driver who was partially ejected through the driver’s side window during a rollover accident was affirmed by the Arkansas Supreme Court, which found that the trial court committed no error in refusing to allow the automaker to introduce evidence that the driver had not been wearing a seat belt at the time of the accident. The state supreme court also upheld the $2.5 million in punitive award included in the jury verdict. (Ford Motor Co. v. Washington, December 12, 2013, Hoofman, C.).

Background. The driver of a 1994 Ford Explorer, Johnny Ray Washington, received fatal head injuries when his vehicle was struck on the driver’s side by another vehicle whose driver had run a stop sign. The Explorer rolled over twice and landed right side-up. During the rollover, the driver’s side window shattered, allowing the driver’s head to exit and become trapped between the vehicle and the pavement. The driver’s spouse brought negligence, strict liability, failure to warn, and breach of warranty claims against Ford Motor Co., the manufacturer of the vehicle, alleging that the vehicle contained two defects: (1) the propensity to roll over and (2) the use of tempered rather than laminated glass in the side windows that made ejection or partial ejection in a rollover more likely. The jury found the manufacturer and the driver of the other vehicle equally responsible for the driver’s death and awarded the estate $4,652,125 in compensatory damages and $2.5 million in punitive damages. The manufacturer challenged a number of the trial court’s rulings, arguing that the trial court erred in (1) refusing to admit evidence of seat belt noncompliance by the driver; (2) determining that the defective-glass claim was not preempted by Federal Motor Vehicle Safety Standards (FMVSS) No. 205; (3) denying the manufacturer’s motion for summary judgment on punitive damages; and (4) failing to reduce the compensatory award by the amount of fault assigned to the driver of the other vehicle.

Seat belt noncompliance. Arkansas law prohibited the introduction of evidence of nonuse of a seat belt unless certain conditions were met, including: that the driver had filed a products liability claim other than a claim related to an alleged failure of the seat belt; that compliance would have reduced the injuries; and the extent of the reduction of the injuries. The trial court determined that the manufacturer failed to meet its burden of proof under the statute. The manufacturer claimed that testimony by its expert, a mechanical engineering and accident-reconstruction expert, was sufficient to establish that the driver had not been wearing his seat belt at the time of the accident; and that had the driver been wearing a seat belt, his injuries would not have been fatal. The manufacturer also argued that the eyewitness testimony presented by the estate was equivocal on the issue of whether the driver had been wearing his seat belt at the time of the accident.

The trial court’s conclusion that the expert’s testimony was filled with generalizations and that there was no evidence regarding what a seat belt would have done in a roll-over accident or the extent to which the driver’s injuries would have been reduced had he been wearing a seat belt was reached only after the court had conducted a hearing, had fully considered all the evidence presented, and after having heard arguments from both parties. It was left to the trial court to determine whether the requisite burden under the statute had been met and the state supreme court found no evidence that the court had acted without due consideration in finding that the manufacturer did not meet its burden in this case.

The state supreme court also rejected the manufacturer’s argument that the evidence of seat belt usage was admissible because the estate “opened the door” to it by introducing evidence that the driver had been wearing a seat belt. Because there exists a statute expressly prohibiting the admission of this type of evidence and that statute did not provide an exception when a plaintiff opened the door, the state supreme court affirmed the trial court’s ruling excluding evidence of the driver’s nonuse of a seat belt.

Preemption. The issue of whether the estate’s claim that the vehicle was defectively designed because the manufacturer used tempered rather than laminated glass in the side windows was preempted by FMVSS No. 205 had been waived, the state supreme court decided, because jury reached its verdict on a general-verdict form. FMVSS No. 205 expressly permits vehicle manufacturers to choose between tempered or laminated glazing in side windows and, thus, the estate’s claim that the side window was defective might have been preempted but because the general verdict form had been used, the state supreme court had no way to determine whether the jury found in favor of the estate based solely on the vehicle’s propensity to roll over, or on the defective window glazing, or a combination of both theories. The manufacturer could not demonstrate prejudice from the jury’s consideration of the glazing claim, and, therefore, the court rejected the preemption argument.

Punitive damages. The state supreme court upheld the jury’s award of punitive damages, finding substantial evidence of the manufacturer’s knowledge of the Explorer’s rollover tendencies to satisfy the burden of proof required. The evidence established that (1) the manufacturer had implemented only two of four solutions recommended by its engineers to address the vehicle’s rollover issues; (2) one of the recommended changes that was not implemented was technically feasible and effective; (3) the vehicle had not been tested adequately; and (4) the manufacturer had consciously disregarded the risk of rollover when it chose to sell the vehicle with larger tires despite its awareness of the risk associated with them. With regard to the glazing issue, the evidence established the feasibility of installing properly framed laminated side windows; the minimal cost of those windows; that the driver would not have sustained fatal injuries had laminated glass been used, and that the manufacturer’s engineers had knowledge as to the superiority of laminated glazing in cases of rollover.

Joint and several liability. Finally, the court refused to reduce the compensatory damage award by 50 percent, the amount of fault attributed by the jury to the driver of the other car. The jury was instructed to fix the amount of money that would “reasonably and fairly compensate [the estate] for those elements of damage which you [the jury] find were proximately caused by the negligence and/or manufacture, assembly, and/or sale of a defective vehicle by Ford Motor Company.” Although the interrogatories did not limit the damages to those caused solely by the manufacturer but allowed for assessment of damages against the other driver, the manufacturer did not object to the instruction or argue that the interrogatories were inconsistent with the jury instructions. There was no evidence that the jury did not obey the instructions and thus, the damage award represented only those damages proximately caused by the manufacturer. Thus, there was no basis for a reduction of the compensatory award, the state supreme court concluded.

The case number is CV-13-449.

Attorneys: Edwin L. Lowther (Wright, Lindsey & Jennings, LLP) for Ford Motor Co. Phillip J. Duncan (The Duncan Firm) for Paulette R. Washington.

Companies: Ford Motor Co.

MainStory: TopStory DefensesLiabilityNews PreemptionNews EvidentiaryNews DamagesNews MotorVehiclesNews MotorEquipmentNews ArkansasNews

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